[2013] FWC 1606 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Edward Viska
v
Lucas Dumbrell Investments Pty Ltd T/A Lucas Dumbrell Motorsport
(U2012/12875)
COMMISSIONER GOOLEY |
MELBOURNE, 15 MARCH 2013 |
Application for unfair dismissal remedy.
[1] Edward Viska (the Applicant) was employed by Lucas Dumbrell Investments Pty Ltd T/A Lucas Dumbrell Motorsport (the Respondent) from 15 August 2011 until his employment was terminated on 20 August 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was heard on 18 January 2013.
[3] On 3 September 2012 a copy of the application was forwarded to the Respondent by Fair Work Australia. The Respondent did not file a response to the application as required by rule 14A of the Fair Work Australia Rules 2010.
[4] The application was listed for conciliation conference on 20 September 2012 but on 19 September 2012 Mr Lucas Dumbrell, the Director of the Respondent, asked for the conciliation conference to be rescheduled as his HR staff member was unavailable. The request was rejected and on 20 September 2012 the Respondent made a further request for the conciliation conference to be adjourned.
[5] On 29 October 2012 Fair Work Australia issued directions for the filing of material. Relevantly the Respondent was required to file its evidence and submissions by noon on 10 December 2012. The Respondent did not comply with this direction.
[6] On 1 November 2012 Ms Nicole Walsh, on behalf of the Respondent, advised that the hearing dates of 16, 17 and 18 January 2013 were not suitable as Mr Dumbrell would be on holidays on those dates.
[7] Messages were left with the Respondenet on 2 and 7 November 2012 for Mr Dumbrell to call Fair Work Australia about the request for an adjournment. On 7 November 2012 Fair Work Australia sent Mr Dumbrell an email asking that he provide evidence that he would be on holidays at the time of the hearing.
[8] On 17 and 20 December 2012 Fair Work Australia left messages for the Respondent and asked that contact be made with Fair Work Australia. The Respondent did not respond to the email and telephone messages.
[9] On 21 December 2012 an email was sent to the parties noting the directions of 29 October 2012 and noting that the Respondent had failed to comply with the directions. The Respondent was advised that if it did not attend the hearing the matter would be determined in its absence.
[10] On 11 January 2013 the Applicant made an application for a non-compliance hearing. That application was supported by an affidavit of the Applicant’s solicitor. That affidavit advised the solicitor had attempted to make contact with the Respondent about the failure to comply with directions but to no avail.
[11] On 15 January 2013 an email was forwarded to the parties advising that the application for a non-compliance hearing would be dealt with at the hearing of the substantive matter. The email further advised that if the Respondent sought to call evidence at the hearing it would need leave of the Fair Work Commission (the Commission). The Respondent was again put on notice that if it failed to appear the matter would proceed and be determined on the evidence before the Commission.
[12] The Respondent did not attend the hearing. Contact was made with the Respondent’s office and my associate was advised that Mr Dumbrell was not available. A phone call was then made to Mr Dumbrell’s mobile phone but there was no answer.
[13] The hearing then proceeded in the Respondent’s absence.
The application for a re-hearing
[14] After the hearing, my chambers received a phone call from a representative of the Respondent advising that Mr Dumbrell had had an accident that morning that had prevented him from attending. At approximately 5pm Mr Dumbrell contacted my chambers and I advised him that the matter had been heard in his absence and if he wished he could file an application that the matter be reopened.
[15] On 21 January 2013 Mr Dumbrell was sent an email which stated:
“I refer to your telephone conversation with Commissioner Gooley at approximately 5pm on 18 January 2013 in which you advised that you had been unable to attend the hearing this morning. Commissioner Gooley advised you that the matter had been heard in your absence. If you wish to make an application to have the application reheard you are required to file and serve an application and supporting statutory declarations from you and your medical practitioner which set out the circumstances which resulted in you not attending the hearing and not contacting the Commission to advise of your inability to attend. If this application is not received by close of business on 23 January 2013 Commissioner Gooley will issue her decision on the material that is currently before her.
A copy of the application should be forwarded to the Applicant’s solicitors at the same time it is filed with the Fair Work Commission.”
[16] On 23 January 2013 the Respondent filed an application to have the matter reheard. In that application he advised that he is a quadriplegic and on the day of the hearing he fell out of his wheelchair. He advised that given his disability it was imperative that he see a doctor to ensure that he was not injured.
[17] The Respondent did not, in accordance with my email provide any evidence to support its application, in particular, it did not provide a medical certificate to support the application.
[18] The Applicant filed submissions opposing the application for a rehearing.
[19] It submitted that the Respondent had not filed the application for re-hearing by close of business on 23 January 2013. The Respondent did not file any statutory declarations from Mr Dumbrell or his medical practitioner. There was no statement from Mr Dumbrell’s medical practitioner.
[20] The Applicant submitted that the Respondent had failed to comply with earlier directions of the Commission.
[21] The Applicant submitted that the Respondent was on notice about the hearing as he had received an email from the Commission on 15 January 2013 and the Applicant’s solicitor had left a message for the Respondent about the hearing on 16 January 2013.
[22] The Applicant submitted that the application for a rehearing was deficient on merit grounds as it did not address earlier non compliance; it did not provide any details of the accident and it did not address why no alternative arrangements were made for representation before the Commission.
[23] The Applicant submitted that Mr Dumbrell always has one or two carers with him and the application did not indicate if Mr Dumbrell had intended appearing at the hearing on 18 January 2013. Further, it was submitted that Mr Dumbrell did not explain why he did not instruct someone else to appear on the Respondent’s behalf.
[24] The Applicant submitted that he is pursuing full time studies in Great Britain and was required to fly to Australia for the hearing and a rehearing of the matter would prejudice him both financially and by interrupting his studies.
[25] On 5 February 2013 my chambers, by email, advised the Respondent that he had until close of business on 12 February 2013 to reply to the submissions of the Applicant.
[26] The Respondent did not respond to this email.
[27] On 15 February 2013 the Respondent was advised, by notice of listing, that the application for rehearing would be heard on 6 March 2013.
[28] The Respondent did not attend the hearing, nor did the Respondent contact chambers to provide any explanation for its non-attendance.
[29] As there is no evidence before the Commission to support the application for a rehearing the application for a rehearing is dismissed.
The Unfair Dismissal Application
[30] The Applicant gave evidence on his own behalf. 1
[31] The Applicant was employed by the Respondent from 15 August 2011 until his employment was terminated summarily on 20 August 2012.
[32] It was the Applicant’s evidence that he was initially employed by the Respondent as a second mechanic. On or about 31 December 2011 the Applicant was offered a promotion to the position of Race Engineer. At the time of this appointment, the Applicant said that his short experience in motorsport was known to the Respondent and he assumed he would be provided with mentoring and on the job training.
[33] It was the Applicant’s evidence that he did not receive the mentoring or on the job training but he was expected to fill the positions of both Race Engineer and Team Manager for most of 2012. In June 2012 he received a salary increase.
[34] On 16 August 2012 the Applicant was called to a meeting with the new Team Manager and was told by him that he was not suitable for the position of Race Engineer because of his lack of experience. There was some discussion at the meeting about alternative positions for the Applicant.
[35] On 20 August 2012 the Applicant was called to a meeting at which his employment was terminated summarily because of a number of errors, it was said, he had committed. The Applicant was not paid in lieu of notice.
[36] In the letter of termination dated 20 August 2012 it was said that the following issues had been discussed:
[37] The Applicant gave evidence that the matters set out in paragraph [36] above had not been raised at the meeting on 16 August 2012 and he had not been counselled about any issues related to his performance during his employment. He had not received any warnings about his performance.
[38] The Applicant responded to each allegation.
[39] In response to the first allegation, the Applicant gave evidence that the filters were on for the Townsville event. It was his evidence that one damaged item was taken off during the post race cleaning to be replaced. It was then decided after discussion with and the agreement of Mr Dumbrell to send them away to be serviced.
[40] In response to the second allegation, the Applicant said this was a minor setup variance which throughout the year had not proved to cost the car in terms of overall performance on the track.
[41] In response to the third allegation, the Applicant accepted that the tyre bank was not within regulations but said this was being addressed and Mr Dumbrell knew about it. He said he had been working actively to ensure compliance with the regulations.
[42] In response to the fourth allegation, the Applicant accepted that a mistake had been made and he had spoken to Mr Dumbrell and put in place processes to ensure that it would not reoccur. He spoke to race officials who told him the incident was minor and the chance of a penalty was highly unlikely.
[43] The Applicant’s contract of employment was tendered. 2 That contract provided that for a period of twelve months after the date of termination the Applicant was restrained from being “employed by, engaged by, or in any way associated with a competitor of Lucas Dumbrell Motorsport within any country in which an equivalent standard or higher of motorsport category in comparison to Lucas Dumbrell Motorsport or its affiliates operate.”
[44] The Applicant’s submissions addressed the Small Business Dismissal Code. There is no evidence before me about the size of the Respondent’s business. Assuming that the Respondent is a small business then it is necessary to consider the Small Business Dismissal Code (the Code).
[45] The Code provides as follows:
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[46] In this matter there is no evidence to support a finding that the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.
[47] Further there is no evidence that the Applicant was ever advised that his employment was at risk. I therefore find that the dismissal was not consistent with the Code.
Was the termination of employment harsh, unjust or unreasonable?
[48] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:
s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[49] The Applicant admitted that there were some issues with his performance. However, none of the incidents described in the letter of termination and on the evidence before the Commission support a finding that there was a valid reason for the termination of the Applicant’s employment.
s387(b) whether the Applicant was notified of that reason;
[50] The Applicant was not notified of the reason for the dismissal until after the decision was taken to terminate his employment.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[51] The Applicant was told on 16 August 2012 that he was to be removed from his position as Race Engineer because of his lack of experience. There is no evidence that the Applicant was given an opportunity at that meeting to respond to the Respondent’s assessment of his capacity to do the job. It appears that all that was discussed at this meeting was possible changes to his role which would see him continue his employment.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[52] The Applicant did not ask to have a support person present. This is unsurprising as he was not aware that the Respondent was considering terminating his employment.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[53] While it appears from the evidence of the Applicant that he was spoken to about some performance issues, there was no evidence that the Applicant was ever warned about that unsatisfactory performance.
s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
[54] There was no evidence about the size of the Respondent’s enterprise and its impact on the procedures followed. However no matter how small the business may be, the Code makes it clear that all employees are entitled to be told if their performance is putting their job at risk.
s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
[55] There was no evidence about whether the Respondent had any human resource management specialists or expertise which would have an impact on the procedures followed.
s387(h) any other matters that FWA considers relevant.
[56] The Applicant was summarily dismissed and was not paid in lieu of notice. Further, the Applicant’s contract provided that he was unable to work with a competitor of the Respondent for twelve months. The Applicant submitted that the Respondent knew when it summarily dismissed the Applicant that, because of the restraint, the termination of his employment would have a significant impact on his chosen career both in Australia and overseas.
Conclusion
[57] There was no valid reason for the termination of the Applicant’s employment. Further, the Applicant was not afforded procedural fairness. Further, the consequences for the Applicant on his chosen career, given the restraint clause in his contract were severe. Given no evidence was put before the Tribunal by the Respondent, I find that the termination of the Applicant’s employment was harsh, unjust and unreasonable.
Remedy
[58] The Applicant initially sought reinstatement but at the conclusion of the hearing the Applicant advised that he was seeking compensation. I have concluded, given the Applicant does not wish to be reinstated, that reinstatement is not an appropriate remedy.
[59] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[60] There was no evidence that any order for compensation will impact on the viability of the employer’s enterprise.
(b) the length of the person’s service with the employer;
[61] The Applicant was employed for just over twelve months which was not a long period of time.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[62] The Applicant’s position with the Respondent was ongoing. Had the Applicant not been dismissed, he would have continued to work for the Respondent for at least twelve months. At the date of his dismissal he was earning $72,500 plus 9% superannuation which was a remuneration package of $79,025. Therefore the amount of remuneration that the Applicant would have earned in the twelve months after 20 August 2012 was $79,025.
[63] No submissions were made on whether any amount should be deducted for contingencies. I have however decided to deduct a small amount for the contingency of 10% for the prospect that between the date of this decision and the end of the twelve month period the Applicant may have ceased work for reasons unrelated to his performance or conduct.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[64] The Applicant commenced full time studies enrolling in a Masters of Motor Sports Engineering in the United Kingdom in September 2012. This is a one year course. The Applicant submitted that because of the restraint clause in his contract he was unable to work in his chosen profession for twelve months. It was his submission that it would be unreasonable to expect him to work in another field. He submitted that he had approached other companies but they had been scared off by the restraint clause. It was submitted that given the twelve months restraint clause the Applicant’s decision to undertake full time studies was a reasonable attempt to mitigate his losses arising from the dismissal. I accept the submissions of the Applicant and there will be no reduction in the amount to be paid due to this criterion.
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;
[65] The Applicant will not earn any income in this period.
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;
[66] The Applicant will not earn any income in this period.
(g) any other matter that FWA considers relevant.
[67] There were no other submissions made in relation to compensation.
[68] Section 392(3) of the FW Act does not have any application as there was no allegation of misconduct.
[69] I would have, but for section 392(5) of the FW Act, ordered the Applicant receive $71,122.50 in compensation.
[70] Section 392(5) provides that the amount paid in compensation cannot exceed the amount received by the Applicant during the 26 weeks immediately prior to the dismissal, which would in this case be $39,512.50. Therefore I will issue an order [PR534837] that the Respondent pay the Applicant $39,512.50 less applicable tax within 21 days of the making the order.
COMMISSIONER
Appearances:
Mr J Fetter for the Applicant.
No appearance by the Respondent.
Hearing details:
Melbourne.
2013:
18 January and 6 March.
1 Exhibit A1
2 Exhibit A2
Printed by authority of the Commonwealth Government Printer
<Price code C, PR534836>